NLRB Cracks Down on Neutral Employer Dress Code Policies That Result in De Facto Ban of Union Apparel

Carissa Davis

Absent “special circumstances,” an employer violates the National Labor Relations Act (“Act”) when its neutral dress code policy results in a bar on pro-union apparel in the workplace. In a decision involving automaker Tesla, the National Labor Relations Board (“Board”) overturned precedent set in the 2019 Walmart decision and returned to the “special circumstances” standard established in Republic Aviation.

The Tesla case centered on a 2017 union drive by United Auto Workers (“UAW”), during which Tesla required employees to don “team wear,” such as matching work gear designed to prevent inadvertent damage to vehicles by the presence of zippers, buttons and the like. By virtue of this neutral policy, employees were prohibited from wearing UAW gear because it was not “team wear.” The Union challenged the Tesla policy, arguing that it unlawfully encumbered employees’ Section 7 rights.

The Board found it inconsequential that Tesla’s policy allowed employees to wear pro-union apparel in other forms, explaining that the Board and courts “have rejected the proposition that an employer’s willingness to tolerate the display of some union insignia by its employees gives it a free hand to restrict other protected displays of union insignia. To hold otherwise would effectively treat the display of union insignia as a privilege to be granted by the employer on the terms it chooses rather than as an essential Section 7 right that the employer is required to accommodate.”

In overturning the Walmart decision, which held that special circumstances were not necessary to justify such policies, the Board agreed with UAW. It explained that prior to the Walmart decision, the standard was “straightforward: if an employer interfered with employees’ Section 7 right to display union insignia, then it had the burden to establish special circumstances to justify its interference.” The Board therefore returned to the standard set forth in Republic Aviation—that an employer’s requirement to wear certain uniforms or clothing implicitly prohibits employees from donning union attire, and absent “special circumstances,” this violates the Act.

What would have constituted the requisite “special circumstances” here? The Board has found special circumstances present when the prohibited attire “may jeopardize employee safety, damage machinery or products, exacerbate employee dissension, or unreasonably interfere with a public image that the employer has established, or when necessary to maintain decorum and discipline among employees.” Komatsu America Corp., 342 NLRB 649, 650 (2004). However, the Board explained those reasons were not present here because Tesla had “not shown that cotton shirts with non-[Tesla] logos, such as union logos, pose a mutilation risk to the unfinished vehicles.” Accordingly, the Board held that Tesla violated the Act.

This decision will be applied retroactively except in circumstances where its application would result in “manifest injustice.” When faced with employees wearing union apparel, in any form, employers are well advised to seek the advice of experienced labor counsel to determine rights and obligations under the renewed standard.